Veena Industries Ltd., Pune V. Additional Commissioner of Income-tax,

ITA 884/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1104 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Assessee Lawyers: NILESH KHANDELWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , ! ' , % BEFORE SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM . / ITA NO. 884/PN/2014 ( ( / ASSESSMENT YEAR : 2009-10 VEENA INDUSTRIES LTD., MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, RIVERSIDE BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE - 411001 PAN : AAACV9329E ....... / APPELLANT / V/S. ADDL.CIT, RANGE-10, PUNE / RESPONDENT ASSESSEE BY : SHRI NILESH KHANDELWAL REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 30-09-2015 / DATE OF PRONOUNCEMENT : 30-09-2015 / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF CIT(A)-V, PUNE DATED 11-02-2014 FOR THE ASSESSMENT YEAR 2009-1 0. 2. IN GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED AS M ANY AS 9 GROUNDS. GROUND NOS. 1 TO 7 RELATE TO DISALLOWANCE OF DED UCTION CLAIMED BY THE ASSESSEE U/S.80IB(4) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT) ON THE PROFITS DERIV ED FROM ITS 2 ITA NO. 884/PN/2014, A.Y. 2009-10 UNIT LOCATED AT SILVASSA IN THE UNION TERRITORY OF DADRA & NAGAR HAVELI, AN INDUSTRIALLY BACKWARD AREA SPECIFIED IN 8 TH SCHEDULE TO THE ACT. IN GROUND NO. 8 THE ASSESSING OFFICER HAS MADE THE DISALLOWANCE OF RS.13 LAKHS ON THE COMMISSION EXPENSES CLAIM ED BY THE ASSESSEE. GROUND NO. 9 IN THE APPEAL IS GENERAL IN NATURE. 3. BRIEF FACTS OF THE CASE ARE : THE ASSESSEE IS ENGAGED IN MANUFACTURING OF GENSET AND GENSET COMPONENTS, SHEET ME TAL FABRICATION ETC. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y. 2009-10 ON 29-12-2009 DECLARING TOTAL INCOME OF RS.7,16,44,7 90/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S.143(2) WAS ISSUED TO THE ASSESSEE ON 18-08-2010. IN THE RETURN OF INCOME, THE ASSESSEE CLAIME D DEDUCTION U/S.80IB(4) ON THE PROFITS AND GAINS FROM ITS IND USTRIAL UNIT LOCATED AT SILVASSA. DURING THE COURSE OF SCRUTINY AS SESSMENT, THE AO DISALLOWED THE CLAIM OF ASSESSEE U/S.80IB(4) BY PLACING RELIANCE ON ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS 2005-06 TO 2008-09. THE AO IS OF THE VIEW THAT THE ASSESSEE HAS N OT BEEN ABLE TO PROVE THAT IT HAS STARTED MANUFACTURING ACTIVITY ON O R BEFORE 31-03-2004 TO BE ELIGIBLE TO CLAIM DEDUCTION U/S.80IB(4). AS FAR AS PAYMENT OF COMMISSION IS CONCERNED, THE AO REJECTED THE CLAIM ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO PLACE ON RECORD RELEVANT DOCUMENTS, VIZ., BILLS, TDS CERTIFICATES ETC. TO SUBSTA NTIATE THE CLAIM. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 29-12-201 1, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A ) IN AN EX- PARTE PROCEEDINGS DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST THE FINDINGS OF THE CIT(A) THE ASSESSEE IS IN SECOND APPEAL BEFO RE THE TRIBUNAL. 3 ITA NO. 884/PN/2014, A.Y. 2009-10 5. MR. NILESH KHANDELWAL APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE ISSUE RELATING TO DISALLOWANCE OF DEDUCT ION U/S.80IB(4) HAS ALREADY BEEN DECIDED BY THE COORDINATE BE NCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS. 1368 & 1369/PN/2012 FOR THE ASSESSMENT YEARS 2005-06 AND 20 08-09 AND IN ITA NOS. 283 & 1344/PN/2010 FOR THE ASSESSMENT YEAR S 2006-07 AND 2007-08 DECIDED VIDE COMMON ORDER DATED 27-02-201 5. THE TRIBUNAL AFTER APPRECIATING THE FACTS OF THE CASE HAS REM ITTED THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WITH A SPECIFIC D IRECTION. THE LD. AUTHORISED REPRESENTATIVE PLACED ON RECORD A CO PY OF THE ORDER OF TRIBUNAL DATED 27-02-2015 IN THE AFORESAID APPEALS. IN SO FAR AS THE SECOND ISSUE RAISED IN THE APPEAL REGA RDING DISALLOWANCE OF COMMISSION EXPENSES, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT IF AN OPPORTUNITY IS GIVEN , THE ASSESSEE CAN PLACE ON RECORD ALL THE DOCUMENTS WHICH AR E RELEVANT TO SUBSTANTIATE THE PAYMENT OF COMMISSION. 6. MR.DHEERAJ JAIN REPRESENTING THE DEPARTMENT FAIRLY AGRE ED THAT THE ISSUE RELATING TO DISALLOWANCE OF DEDUCTION U/S.80 IB(4) WAS EARLIER AGITATED BY THE DEPARTMENT, AS WELL AS, THE ASSESS EE BEFORE THE TRIBUNAL AND THE TRIBUNAL HAS REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. SO FAR AS THE COMMISSION EXPENSES IS CONCERNED, THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE FINDINGS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENT ATIVES OF THE RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AU THORITIES BELOW. WE HAVE ALSO CONSIDERED THE DECISION OF THE COORD INATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS . 283 & 4 ITA NO. 884/PN/2014, A.Y. 2009-10 1344/PN/2010 AND ITA NOS. 1368 & 1369/PN/2012 (SUPRA) . IN THE PRESENT APPEAL THE ASSESSEE HAS ASSAILED THE FINDINGS OF THE CIT(A) IN DISALLOWING THE CLAIM OF DEDUCTION U/S.80IB(4) AND DISALLOWANCE OF COMMISSION EXPENSES. A PERUSAL OF THE IMPUGNED ORDER SHO WS THAT IT IS AN EXPARTE ORDER. THE CIT(A) HAS DISALLOWED THE DED UCTION U/S.80IB(4) BY FOLLOWING HIS OWN ORDER FOR THE ASSESSMENT YE AR 2008-09 WHICH HAS NOW BEEN SET ASIDE BY THE COORDINATE BENCH OF THE TRIBUNAL. THE ASSESSING OFFICER HAS DISALLOWED THE DEDUC TION U/S.80IB(4) FOR THE IMPUGNED ASSESSMENT YEAR ON THE LINES OF ASSESSMENT ORDERS PASSED IN THE EARLIER ASSESSMENT YEA RS, I.E. A.Y. 2005-06 TO A.Y.2008-09. 8. WE FIND THAT THE ISSUE RELATING TO DISALLOWANCE OF DEDUCTI ON U/S.80IB(4) HAS BEEN RECURRING EVERY YEAR FROM ASSESSMEN T YEAR 2005-06 ONWARDS. THE ASSESSING OFFICER HAS BEEN DISALLOWING DEDUCTION U/S.80IB(4) IN ALL THE AFORESAID ASSESSMENT YEAR S ON THE SAME GROUND. IN ASSESSMENT YEARS 2005-06 AND 2008-09 THE CIT (A) UPHELD THE FINDINGS OF ASSESSING OFFICER ON THE ISSUE, WHEREAS IN ASSESSMENT YEARS 2006-07 AND 2007-08 THE CIT(A) ALLOWED THE CLAIM OF DEDUCTION U/S.80IB(4). AGAINST THE FINDINGS OF THE CIT (A) THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL IN ASSESSMEN T YEARS 2005-06 AND 2008-09 AND THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL IN ASSESSMENT YEARS 2006-07 AND 2007-08. THE TRIBUNAL VIDE ORDER DATED 27-02-2015 DECIDED ALL THE FOUR APPEALS. THE RELEVANT EXTRACT OF THE FINDINGS OF THE TRIBUNAL ARE AS UNDER : 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. AFTER HAVING CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND THE RIVAL SUBMISSIONS, ONE ISSUE WHICH COMES OUT IS THAT MAJOR PLANK OF TH E REVENUE IS BASED ON THE ENQUIRIES CONDUCTED WITH THE TRANSPORTER. IN-F ACT, WHETHER OR NOT THE MANUFACTURING ACTIVITY OF THE ASSESSEE AT SILVASSA UNIT HAD COMMENCED ON OR BEFORE 31.03.2004 IS A MATTER OF FACTUAL APPRECI ATION. THE LETTER OF THE TRANSPORTER DATED 10.12.2010, AND HIS STATEMENT OF EVEN DATE WHICH HAVE BEEN HEAVILY RELIED UPON BY THE ASSESSING OFFICER, HAVE BEEN PLACED AT 5 ITA NO. 884/PN/2014, A.Y. 2009-10 PAGES 152 TO 155 AND 156 TO 161 OF THE PAPER BOOK. IT IS NOTICEABLE THAT ON 10.12.2010 WHEN THE TRANSPORTER WAS PUT TO QUEST ION, HE DENIED OF ANY BUSINESS TRANSACTION OR RELATION WITH THE ASSESSEE OF M/S KAVITA INDUSTRIES PVT. LTD.. FURTHER, WHEN THE BILLS PURPORTED TO HA VE BEEN ISSUED BY HIM TO M/S KAVITA INDUSTRIES PVT. LTD. AND ASSESSEE WERE P UT TO HIM, IT WAS STATED THAT THOSE BILLS I.E. BILL NOS.130 AND 132 RESPECTI VELY WERE NOT ISSUED BY HIM. THOUGH, HE CONFIRMED THE VEHICLE NUMBER MENTI ONED IN THE BILLS BUT IT WAS CLAIMED BY HIM THAT THE SAID VEHICLE WAS NOT SENT BY HIM FROM CHAKAN, PUNE (I.E. THE PREMISES OF M/S KAVITA INDUS TRIES PVT. LTD.) TO SILVASSA UNIT OF THE ASSESSEE. AFTER NOTICING THE DENIAL OF THE TRANSPORTER, HE WAS ALSO ASKED TO PRODUCE A LOG BOOK, IF ANY, MA INTAINED BY HIM SHOWING MOVEMENT OF THE VEHICLE IN QUESTION. IN RE SPONSE, IT WAS STATED THAT THOUGH THE VEHICLE WAS OWNED BY HIM BUT NO LOG BOOK WAS MAINTAINED FOR ITS MOVEMENT. ON BEING ASKED TO PRO DUCE THE BILL BOOK FOR THE RELEVANT PERIOD, THE SAID TRANSPORTER REPLIED T HAT IT WAS NOT AVAILABLE AND IT WAS KEPT IN THE GODOWN IN HIS RESIDENTIAL HO USE WHICH HE HAD SINCE SHIFTED OUT. THE TRANSPORTER ALSO CONFIRMED THAT T HE BILL NOS. 130 AND 132 PURPORTED TO HAVE BEEN ISSUED BY HIM WERE NOT EVEN SIGNED BY HIM AND NOR WERE ISSUED BY HIM. WHEN ALL THESE WERE PUT TO THE ASSESSEE, A DETAILED WRITTEN COMMUNICATION WAS FURNISHED, WHICH WE HAVE ALREADY REPRODUCED IN THE EARLIER PART OF THIS ORDER. THE CLAIM OF THE ASSESSEE WAS THAT THE RELEVANT TRANSPORT BILLS WERE ISSUED BY TH E TRANSPORTER HIMSELF AND WERE DULY SIGNED BY HIM. THE REPLY FURNISHED B Y THE ASSESSEE CLARIFIED THE POSITION THAT THE VEHICLE IN QUESTION BELONGED TO THE M/S PADWAL TRANSPORT, WHO CARRIED TWO CONSIGNMENTS FROM PUNE T O SILVASSA ON 28.03.2004 ONE BELONGING TO M/S KAVITA INDUSTRIES P VT. LTD. AND THE OTHER BELONGING TO M/S SNA INDUSTRIES. FURTHER, THE SAME VEHICLE BROUGHT BACK TWO CONSIGNMENTS FROM SILVASSA TO PUNE ON 30.03.200 4 ONE BELONGING TO M/S AUTO MECH INDUSTRIES PVT. LTD. AND OTHER BELONG ING TO ASSESSEES SILVASSA UNIT. IT WAS POINTED OUT THAT NOT ONLY TW O BILL NOS. 130 AND 132 WERE ISSUED BY THE TRANSPORTER BUT ALSO BILL NOS. 2 46 AND 249 WHICH RELATED TO M/S PADWAL TRANSPORT FOR CARRYING OF TWO CONSIGNMENTS FROM PUNE TO SILVASSA ON 28.03.2004 AND BRINGING BACK TH E CONSIGNMENT TO PUNE ON 30.03.2004. IT WAS POINTED OUT THAT TOTAL TRANSPORTATION CHARGES COVERING THE FOUR BILLS TOTALLED TO RS.7,280/- AND THEREFORE THE CASE SETUP BY THE TRANSPORTER IN HIS STATEMENT THAT IT WAS IMP OSSIBLE TO MAKE HIM TRIP FROM PUNE TO SILVASSA FOR A SUM OF RS.1,820/- WAS ONLY HALF-TRUTH BECAUSE THE TRANSPORTER HAD EARNED MUCH MORE THAN T HE FIGURE OF RS.1,820/- WHICH RELATED TO ONLY ONE OF THE FOUR BI LLS RAISED. IT WAS ALSO POINTED OUT THAT THE TRANSPORTER HAD HIMSELF STATED THAT THE TRANSPORTATION CHARGES FOR ONE TRIP BETWEEN PUNE AN D SILVASSA SHOULD HAVE BEEN RS.5,000/-, A STATEMENT MADE IN THE CONTE XT OF THE AMOUNT OF RS.1,820/- STATED IN THE BILL SHOWN TO HIM. THE AS SESSEE POINTED OUT THAT THE TRANSPORTER HAD EARNED RS.7,280/- WHICH SHOWED THAT THE CHARGES WERE COMMENSURATE TO WHAT WAS THE EXPECTATION OF TH E TRANSPORTER. SINCE ASSESSEE POINTED OUT THAT BILL NOS. 246 AND 2 49 DATED 30.03.2004 WHICH WERE ISSUED BY THE M/S PADWAL TRANSPORT ON M/ S KAVITA INDUSTRIES PVT. LTD. AND M/S SNA INDUSTRIES, CHAKAN, RESPECTIV ELY WERE GENUINE, THERE WAS NO REASON FOR THE TRANSPORTER TO HAVE DENIED TH E AUTHENTICITY OF THE OTHER TWO BILLS, NAMELY, 130 AND 132. IT WAS POINT ED OUT THAT ON THE BASIS OF OTHER BILLS OF THE TRANSPORTER ALSO THAT THE SIG NATURES ON ALL THE BILLS ARE IDENTICAL AND SIMILAR. WE FIND THAT WHEN THE TRANS PORTER WAS AGAIN PUT TO EXAMINATION BY THE ASSESSING OFFICER, HE RESCINDED FROM HIS EARLIER STAND OF THE BILLS HAVING BEEN FABRICATED. A COPY OF THE SAID STATEMENT RECORDED ON 28.12.2010 IS PLACED AT PAGES 20 TO 24 OF THE PA PER BOOK. THE RELEVANT PORTION OF THE SAME IS ALREADY REPRODUCED IN THE EA RLIER PART OF THIS ORDER. NEVERTHELESS, WHEN THE ASSESSING OFFICER PUT ACROSS TO THE TRANSPORTER BILL NOS. 246 AND 249 ISSUED BY HIM AS ALSO THE CONTENTS OF ASSESSEES 6 ITA NO. 884/PN/2014, A.Y. 2009-10 SUBMISSIONS IT WAS ADMITTED THAT THE LR AND BILLS W ERE INDEED ISSUED AND SIGNED BY HIM. THE TRANSPORTER EXPLAINED THAT THE BILLS RELATED TO THE LOCAL TRANSPORTATION AND NOT FOR TRANSPORTATION OUTSIDE M AHARASHTRA AND THAT IN THE BILLS HE HAD MENTIONED THE ADDRESS OF SILVAS SA MERELY FOR THE PURPOSES OF BILLING. ACCORDING TO THE TRANSPORTER, THOUGH THE LRS AND BILLS WERE ISSUED BY HIM BUT THEY WERE FOR LOCAL TRANSPOR TATION ONLY AND THERE WAS NO TRANSPORTATION OF GOODS FROM CHAKAN, PUNE TO SILVASSA OR FROM SILVASSA TO CHAKAN, PUNE. 21. OSTENSIBLY, THERE ARE APPARENT CONTRADICTIONS I N THE STATEMENTS FURNISHED BY THE TRANSPORTER AT THE DIFFERENT POINT S OF TIME. IN SUCH A SITUATION, ONE OF THE COURSE AVAILABLE WAS FOR A CR OSS-EXAMINATION OF THE TRANSPORTER BY THE ASSESSEE. ON THIS ASPECT, WE F IND THAT THE ASSESSING OFFICER DID ALLOW AN OPPORTUNITY TO THE ASSESSEE OF CROSS-EXAMINING THE TRANSPORTER. WE FIND THAT IN THIS CONTEXT, THE ASS ESSING OFFICER REQUIRED THE ASSESSEE TO CROSS-EXAMINE THE TRANSPORTER ON 29 .12.2010. THE SAID OPPORTUNITY WAS ALLOWED BY THE ASSESSING OFFICER TH ROUGH A COMMUNICATION DATED 28.12.2010, A COPY OF WHICH HAS BEEN PLACED ON RECORD. THE ASSESSEE DID NOT AVAIL OF THIS OPPORTU NITY FOR THE REASON EXPLAINED IN ITS EXPLANATION DATED 28.12.2010 TO TH E ASSESSING OFFICER, A COPY OF WHICH HAS BEEN PLACED AT PAGES 95-96 OF THE PAPER BOOK. THE ASSESSEE POINTED OUT THAT EARLIER IT HAD CONTENDED THAT DUE TO THE CONTRADICTORY POSITION TAKEN BY THE TRANSPORTER A R EPORT OF THE HANDWRITING EXPERT BE CALLED FOR TO ESTABLISH AS TO WHETHER THE SIGNATURE ON THE TRANSPORT BILLS WERE THAT OF SHRI PADWAL OR NOT. IT WAS ALSO ASSERTED BY THE ASSESSEE THAT THE CROSS-EXAMINATION WOULD NO T SERVE ANY PURPOSE WHEN THE APPROPRIATE PREPARATION WAS NOT POSSIBLE A T A SHORT NOTICE. NO DOUBT, TECHNICALLY SPEAKING, AN OPPORTUNITY WAS ALL OWED TO THE ASSESSEE TO CROSS-EXAMINE THE TRANSPORTER. THE ASSESSMENT ORDE R HAS BEEN PASSED ON 31.12.2010 AND OBVIOUSLY THE CROSS-EXAMINATION OPPO RTUNITY WAS ALLOWED AT THE FAGEND OF THE PROCEEDINGS. OF-COURSE, ONE OF THE REASONS FOR THE CROSS-EXAMINATION TO BE ALLOWED AT THE FAGEND WAS T HAT THE INVESTIGATION ITSELF WERE STARTED LATE BY THE ASSESSING OFFICER. BUT THE MOOT QUESTION IS THAT CAN IT BE CONCLUSIVELY ESTABLISHED ON THE BASI S OF THE APPARENTLY INCONSISTENT STAND OF THE TRANSPORTER THAT THERE WA S NO TRANSACTION EFFECTED WITH M/S KAVITA INDUSTRIES PVT. LTD. OR M/ S SNA INDUSTRIES PRIOR TO 31.03.2004. IN-FACT, IN THE EXCISE RETURN FURNI SHED BY THE ASSESSEE, A COPY OF WHICH HAS BEEN PLACED AT PAGES 131 TO 132 O F THE PAPER BOOK, IT IS REVEALED THAT ASSESSEE RETURNED THE QUANTITY MANUFA CTURED AND ALSO SHOWED ITS LIABILITY FOR EXCISE DUTY ON THE QUANTIT Y MANUFACTURED AND SOLD. THE SAID RETURN OF INCOME IS DATED 05.04.2004 AND A T THE TIME OF HEARING, THE ORIGINAL COPIES OF THE SAID WERE ALSO CALLED FO R AND PERUSED. THE SAID RETURN CORRESPONDED TO THE QUARTER ENDING ON 31.03. 2004. THE REFLECTION OF QUANTITY OF GOODS MANUFACTURED AND LIABILITY OF EXCISE DUTY THEREOF IN THE SAID RETURN HAS NOT BEEN DISAPPROVED BY THE REV ENUE AT ANY STAGE. THERE IS ALSO NO REASON FOR US TO DISREGARD THE SAM E. NEVERTHELESS, IT IS ALSO EMERGING THAT SO FAR AS THE EVIDENCE OF TRANSP ORTATION IS CONCERNED IT DOES NOT CLINCHINGLY ESTABLISH THE CASE EITHER WAY. UNDER THESE CIRCUMSTANCES, IN OUR VIEW, IT WAS NOT ONLY IMPERAT IVE BUT ALSO PRUDENT THAT THE CROSS-EXAMINATION OF THE TRANSPORTER WAS U NDERTAKEN SO AS TO ENABLE THE ASSESSING OFFICER TO COME TO APPROPRIATE FINDINGS. IN OUR CONSIDERED OPINION, IT WOULD MEET THE ENDS OF JUSTI CE IF THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL CERTAINLY CONFRONTED THE ASSESSEE WITH THE MATERIAL WITH HIM BUT ALSO ENSURE THAT AN APPROPRIATE AND ADEQUATE OPPORTUNITY OF CROSS-EX AMINATION IS ALLOWED TO THE ASSESSEE. IT IS ALSO RELEVANT TO SAY THAT IN RESPONSE TO TH E DENIALS BY THE TRANSPORTER, INITIALLY THE ASSESSEE HAD MADE A DETAILED SUBMISSION ATTEMPTING TO DEMOLISH THE VERSION OF THE TRANSPORT ER. THE INITIAL BURDEN 7 ITA NO. 884/PN/2014, A.Y. 2009-10 ON THE ASSESSEE STOOD DISCHARGED IN VIEW OF ITS SUB MISSIONS DATED 21.12.2010 AND THEREFORE IT WAS IN FITNESS OF THING S THAT CROSS- EXAMINATION WAS CARRIED OUT SO AS TO ENABLE THE ASS ESSING OFFICER TO COME TO AN APPROPRIATE AND CREDIBLE FINDINGS THEREOF. T HUS, WE SET-ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL MAKE AN ORDER AFRESH AFTER ALLOWI NG THE NECESSARY OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND KEEP ING IN MIND OUT ABOVE DIRECTIONS. THUS, FOR ASSESSMENT YEAR 2005-06, ASS ESSEE PARTLY SUCCEEDS FOR STATISTICAL PURPOSES. 22. SINCE IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE ISSUE IN THE OTHER THREE APPEALS ARE IDENTICAL, OUR DECISION IN ASSESSEES APPEAL FOR ASSESSMENT YEAR 2005-06 (SUPRA) IN THE ABOVE PARAS WOULD APPLY MUTATIS- MUTANDIS IN THE OTHER THREE APPEALS ALSO. 9. SINCE THE ISSUE RAISED IN THE IMPUGNED ASSESSMENT YEAR IS IDENTICAL AND NO CHANGE IN THE FACTS AND CIRCUMSTANCES HA VE BEEN POINTED OUT BY EITHER SIDES, WE DEEM IT APPROPRIATE TO R EMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICA TION IN ACCORDANCE WITH THE ORDER OF THE TRIBUNAL DATED 27-02-2 015. THUS, GROUND NOS. 1 TO 7 IN THE APPEAL OF ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSES. 10. THE SECOND ISSUE RAISED BY THE ASSESSEE IN APPEAL IS WITH REGARD TO DISALLOWANCE OF COMMISSION EXPENSES RS.13 LAKHS. WE OBSERVE THAT DURING SCRUTINY ASSESSMENT PROCEEDINGS TH E ASSESSEE WAS ASKED TO SUBMIT THE BILLS AND TDS CERTIFICATES IN RESPE CT OF PAYMENT OF COMMISSION. HOWEVER, THE AUTHORISED REPRESENT ATIVE OF THE ASSESSEE EXPRESSED HIS INABILITY TO PRODUCE THE SAID DOCUMENTS IN THE SHORT SPAN. THE AUTHORISED REPRESENTATIVE OF TH E ASSESSEE SOUGHT MORE TIME TO FURNISH THE INFORMATION AS REQUIRED B Y THE ASSESSING OFFICER. HOWEVER, THE ASSESSING OFFICER PROCEEDED ON TO PASS THE ASSESSMENT ORDER IN THE ABSENCE OF INFORMATION. 11. THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE H AS STATED AT THE BAR THAT THE DOCUMENTS AS SOUGHT BY THE ASSE SSING OFFICER ARE NOW AVAILABLE WITH THE ASSESSEE AND THE SAME CAN BE FURN ISHED, IF 8 ITA NO. 884/PN/2014, A.Y. 2009-10 AN OPPORTUNITY IS GRANTED. WE DEEM IT APPROPRIATE TO R EMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECT ION TO ASSESSEE TO FILE THE NECESSARY DOCUMENTS IN SUPPORT OF T HE CLAIM. THE ASSESSING OFFICER AFTER CONSIDERING THE DOCUMENTS FURNI SHED BY THE ASSESSEE SHALL DECIDE THE ISSUE AFRESH, IN ACCORDANCE WITH LAW. THIS GROUND OF APPEAL OF ASSESSEE IS ALSO ALLOWED FOR STATIST ICAL PURPOSES. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON WEDNESDAY THE 30 TH DAY OF SEPTEMBER, 2015 AFTER HEARING OF THE APPEAL. SD/- SD/- (PRADIP KUMAR KEDIA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 30 TH SEPTEMBER, 2015 SATISH , !. / / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ! () / THE CIT(A)-V, PUNE 4. ! / THE CIT-V, PUNE 5. $ ''( , ( , , , / DR, ITAT, A BENCH, PUNE. 6. / / GUARD FILE. // $ ' // TRUE COPY// / BY ORDER , $ $ ' //TRUE COPY// $ ' //TRUE COPY// 23 ' ( / SR. PRIVATE SECRETARY (, IQ.KS / ITAT, PUNE